Men’s Authority over Women: Qiwama as a Legal Postulate
At the heart of the unequal construction of gender rights in Muslim legal tradition lies the concept of qiwama (guardianship), which has been commonly understood as mandating men’s authority over women.
The ulema frequently invoke Qur’an 4:34 (from which the idea is derived) as the main textual evidence in its support; it is often the only verse that ordinary Muslims know in relation to family law. It reads:Men are qawwamun (protectors/maintainers) in relation to women, according to what God has favoured some over others and according to what they spend from their wealth. Righteous women are qanitat (obedient) guarding the unseen according to what God has guarded. Those [women] whose nushuz you fear, admonish them, and abandon them in bed, and adribuhunna (strike them) If they obey you, do not
pursue a strategy against them. Indeed, God is
Exalted, Great.8
Since the early twentieth century, this verse has been the focus of intense contestation and debate among Muslims, centring on the four terms I have highlighted. There is now a substantial body of literature that attempts to contest and reconstruct the meanings and connotations of these terms as understood and turned into legal rulings by classical jurists.9 Recent contributions have been most concerned with the last part of the verse, and the issue of domestic violence.10 Neither this concern nor the contestation over the meanings of these terms is new; they occupied the minds of classical Muslim jurists, when they inferred from the verse legal rulings regarding the rights and duties of spouses in marriage.11 But the nature and the tone of the debates are new. Juristic disagree-
8 The translation is by Kecia Ali, ‘Understanding a Difficult Verse, Qur'an 4:34', accessed October 14, 2017, https://www.brandeis.edu/projects/fse/muslim/diff-verse.html.
Ali leaves the italicized words untranslated, pointing out that any translation is in the end an interpretation; she also provides links to three other translations of the verse; and to additional interpretations http://www.brandeis.edu/projects/fse/muslim/mus-essays/mus-ess-diffverse-intrprt.html.9 See for instance Abulhamid A. Abusulayman, Marital Discord: Recapturing the Full Islamic Spirit of Human Dignity, Occasional Paper Series 11 (London, Washington: The International Institute of Islamic Thought, 2003); Aziza Al-Hibri, ‘An Islamic perspective on domestic violence', Fordham Law Journal 27 (2003); Wadud, Qur'an and Woman, 70 - 79; idem, Inside the Gender Jihad: Women's Reform in Islam, (Oxford: Oneworld, 2006), 198 - 202. Jolana Guardi, ‘Women Reading the Qur'an: Religious Discourse in Islam', Hawwa: Journal of Women in the Middle East and the Islamic World 2, no. 3 (2004); Shamon Dunn and Rosemary B. Kellison, ‘At the Intersection of Scripture and Law: Qur’an 4:34 and Violence against Women', Journal of Feminist Studies in Religion 26, no. 2 (2010); Manuela Marin, ‘Disciplining Wives: A Historical Reading of Qur'an 4:34', Studia Islamica 98 (2003); Sa‘diyya Sheikh, ‘Exegetical Violence: Nushuz in Quranic Gender Ideology', Journal for Islamic Studies 17 (1997); Hadia Mubarak, ‘Breaking the Interpretive Monopoly: A re-examination of Verse 4:34', Hawwa: Journal of Women in the Middle East and the Islamic World 2, no. 3 (2004); Mohamed A. Mahmoud, ‘To Beat or Not to Beat: On the Exegetical Dilemmas over Qur'an, 4:34', Journal of American Oriental Society 126, no. 4 (2006).
10 For instance, a panel at the 2006 meeting of the American Academy of Religion was devoted to discussion of the verse; the papers were published in the Comparative Islamic Studies 2 (2), 2006, see editorial; see also Al-Hibri, ‘An Islamic Perspective on Domestic Violence'; Murad H. Elsaidi, ‘Human Rights and Islamic Law: A Legal Analysis Challenging the Husband's Authority to Punish “Rebellious” Wives“', Muslim World Journal of Human Rights 2 (2011).
11 They remained at the level of ethical recommendations without legal force. For discussion of Shafi‘i's treatment of this verse and its contradiction with the Prophet's sunnah, see Kecia Ali, Sexual Ethics and Islam: Feminist Reflections on Qur'an, Hadith and Jurisprudence (Oxford: One- world, 2006); Kecia Ali, ‘The Best of You Will Not Strike', Comparative Islamic Studies 2, no. 2 (2006).
ments were not, as now, about the legitimacy or legality of a husband’s right to beat his wife if she defies his authority; they were about the extent and harshness of the beating he should administer. In classical fiqh texts, the validity and inviolability of men’s superiority and authority over women was a given; the verse was understood in this light, and the four key terms were used to define relations between spouses in marriage, and notions of gender justice and equity. As we shall see, all revolved around the first part of the verse and the notion that men are women’s qawwamun, protectors and providers.
Let us call this the qiwama postulate,[120] [121] [122] which I shall argue is the lynchpin of the whole edifice of the patriarchal model of family in classical fiqh. We see the working of this postulate in all areas of Muslim law relating to gender rights, but its impact is most evident, as I have argued elsewhere, in the laws that classical jurists devised for the regulation of marriage?3 They defined marriage as a contract (nikah), and patterned it after the contract of sale (bay'). The contract renders sexual relations licit between a man and woman, and establishes a set of default rights and obligations for each party, some supported by legal force, others by moral sanction. Those with legal force revolve around the twin themes of sexual access and compensation and are embodied in two central legal concepts: tamkin (submission) and nafaqa (maintenance).m Tamkin, obedience or submission, specifically sexual access, is the husband’s right and thus the wife’s duty; whereas nafaqa, maintenance, specifically shelter, food and clothing, is the wife’s right and the husband’s duty. The wife loses her claim to maintenance if she is in a state of nushuz (disobedience). The husband has the unilateral and extra-judicial right to terminate the contract by talaq or repudiation; a wife cannot terminate the contract without her husband’s consent or the permission of the Islamic judge upon producing a valid reason. There are numerous moral injunctions that could have limited men’s power to terminate marriage; for instance there are sayings from the Prophet to the effect that talaq is among the most detested of permitted acts, and that when a man pronounces it, God’s throne shakes. Yet classical fiqh made no attempt to restrict a man’s right to talaq. He needs neither grounds nor the consent of his wife. There were, of course, differences between and within the classical schools over what constituted and what defined the three interrelated concepts — nafa- qa, tamkin and nushuz — but they all shared the same conception of marriage, and the large majority linked a woman’s right to maintenance to her obedience to her husband. The reason for their disagreement, Ibn Rushd tells us, was ‘whether maintenance is a counter-value for (sexual) utilization, or compensation for the fact that she is confined because of her husband, as the case of one absent or sick.’[123] [124] [125] And it was within the parameters of this logic — men provide and women obey — that notions of gender rights and justice acquired their meanings. Cognizant of the inherent tension in such a construction of marriage, and seeking to contain the potential abuse of a husband’s authority, classical jurists narrowed the scope of this authority to the unhampered right to sexual relations with the wife, which in turn limited the scope of her duty to obey to being sexually available, and even here only when it did not interfere with her religious duties (for example, when fasting during Ramadan, or when bleeding during menses or after childbirth). Whether these rulings corresponded to actual practices of marriage and gender relations is another area of inquiry, one that recent scholarship in Islam has started to uncover. 17 What is important to note here is that the qiwama postulate served as a rationale for other legal disparities — such as men’s rights to polygamy and unilateral repudiation, women’s lesser share in inheritance, or the ban on women being judges or political leaders. That is to say, women cannot occupy positions that entail the exercise of authority in society because they are under their husband’s authority and thus not free agents, and they will not be able to deliver impartial justice. Similarly, since men provide for their wives, justice requires that they be entitled to a greater share in inheritance. These inequalities in rights were also rationalised and justified by other arguments, based on assumptions about innate, natural differences between the sexes: women are by nature weaker and more emotional, qualities inappropriate in a leader; they are created for child-bearing, a function that confines them to the home, which means that men must protect and provide for them.[126]